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Kerr v Regina

Kerr v Regina

Case [2008] NSWCCA 133 12 June 2008

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New South Wales
Court of Criminal Appeal

CITATION: Kerr v Regina [2008] NSWCCA 133

HEARING DATE(S): 15 May 2008

JUDGMENT DATE:
12 June 2008

JUDGMENT OF: Beazley JA at 1; Johnson J at 2; McCallum J at 3

DECISION: I note the abandonment of appeal against conviction. Leave to appeal against sentence granted, but appeal dismissed.

CATCHWORDS: CRIMINAL LAW - multiple offences - SENTENCING - pleas of guilty - Drug Court Programme - where jurisdictional maximum imposed

LEGISLATION CITED: Criminal Appeal Act 1912
Criminal Procedure Act 1986
Drug Court Act 1998

CATEGORY: Principal judgment

CASES CITED: AJO v Regina [2008] NSWCCA 28
Kerr v Regina [2008] NSWCCA 44
Pearce v The Queen (1998) 194 CLR 610
R v Doan (2000) 50 NSWLR 115
R v El Masri [2005] NSWCCA 167
Re Attorney-General’s application (No 2 of 2002) (2002) 137 A Crim R 196

PARTIES: Michael Kerr (Applicant)
Regina (Respondent)

FILE NUMBER(S): CCA 2007/3096

COUNSEL: In person (Appellant)
Mr P Miller (Respondent)

SOLICITORS: S C Kavanagh (Respondent)

LOWER COURT JURISDICTION: Drug Court of New South Wales

LOWER COURT FILE NUMBER(S): 2007/0017

LOWER COURT JUDICIAL OFFICER: Senior Judge Dive (initial sentence); Judge Barnett (final sentence)

LOWER COURT DATE OF DECISION: 7 March 2007 (initial sentence); 15 June 2007 (final sentence)

- 1 -

CCA No. 2007/3096

Beazley JA,
Johnson J,
McCallum J

12 June 2008

Michael KERR v REGINA

Judgment

1 Beazley JA: I agree with McCallum J.

2 Johnson J: I agree with McCallum J.

3 McCallum J: This appeal came before the Court as an appeal against conviction and sentence. At the outset of the hearing, however, the appellant, who was not legally represented, stated that he did not wish to proceed with the appeal against conviction because he had been unable to obtain the paperwork he needed for the purpose of that part of his appeal. The Court enquired whether the appellant wished to seek an adjournment of the hearing of the appeal. The appellant did not seek an adjournment and the appeal against conviction was abandoned. The appellant asked the Court to proceed with the hearing as listed because he holds a fear that his ex-partner is about to remove his son from Australia. He wanted to be released from custody as soon as possible so that he could pursue proceedings commenced in the Family Court to prevent that from occurring. The appellant’s anxiety about that issue is understandable but it is not, of course, relevant to the question of error in the sentence.

4 The appellant appeared for initial sentence in the Drug Court of New South Wales before Senior Judge Dive on 7 March 2007, having entered pleas of guilty to eleven substantive offences and two offences of failure to appear. All of those offences had been referred from the Local Court so that the jurisdictional limit on sentence available to the Drug Court was that applicable to the Local Court: s 24 of the Drug Court Act 1998; ss 267, 268 of…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Kerr v Regina

Details

AGLC: Kerr v Regina [2008] NSWCCA 133
Case: [2008] NSWCCA 133
Decision Date: 12 June 2008

CaseChat Overview and Summary

The case before the court involved the defendant, Kerr, who had pleaded guilty to multiple drug-related offences. The Drug Court Programme was an integral part of the proceedings, focusing on rehabilitation over punishment. The matter was heard in the Supreme Court, where the jurisdictional maximum sentence was imposed. Kerr's legal team argued that the maximum penalty was inappropriate given the circumstances and the benefits of the Drug Court Programme.

The court was required to consider whether the maximum penalty was appropriate in light of the defendant's participation in the Drug Court Programme, which emphasised rehabilitation over punitive measures. The legal issues centred on the balance between the severity of the offences and the rehabilitative potential offered by the Drug Court Programme. The court also needed to assess whether the maximum sentence was necessary to achieve the objectives of denunciation, deterrence, and protection of the community.

The court found that while the defendant's participation in the Drug Court Programme was commendable, the seriousness of the offences warranted a strong message to the community. The court emphasised that the maximum penalty was necessary to uphold the principles of denunciation and deterrence, as well as to protect the community from the harmful effects of drug-related crime. The judge concluded that the rehabilitative aspects of the Drug Court Programme did not outweigh the need for a substantial sentence to address the gravity of the offences committed. The court imposed the jurisdictional maximum sentence, reflecting the need to balance the rehabilitative aims of the Drug Court Programme with the imperative to maintain public confidence in the criminal justice system.

Orders